PSC candidate, judge set to make different points

Posted: Saturday, August 02, 2008

ATLANTA - Attorneys for Secretary of State Karen Handel and Public Services Commission hopeful Jim Powell will walk into a courtroom in Fulton County Superior Court on Monday to settle a residency dispute that has left 343,257 votes in limbo.

There's plenty of disagreement between the two parties over Handel's decision days before the July 15 Democratic primary election to disqualify Powell as a candidate because he didn't meet residency requirements to run for the PSC's fourth district seat.

Yet, as far apart as Powell and Handel are, observers expect them to build their cases on the same legal ground - a Georgia Supreme Court ruling in a nearly identical case decided earlier this year.

In that case, the high court ruled in May that PSC Commissioner Bobby Baker's intent to live in the commission's second district outweighed the fact that he spent the majority of his time at a home outside that district. Baker used his voter and vehicle registration, and his driver's license address to prove he lived in the second district, and not at his former home outside the district in DeKalb County, which he turned over to his wife.

Powell's case is similar. He and his wife purchased a home in the fourth district in August 2006, and he has paid taxes and voted there.

But unlike Baker, Powell's name still appeared on the homestead exemption on a home outside the district at the time he qualified as a candidate. He unsuccessfully tried to switch the exemption to the other property in 2007.

Handel determined that exemption established the home as his residence, and then disqualified him because he did not live in the fourth district at least 12 months prior to the election. That was the reverse of an advisory opinion an administrative law judge provided Handel with just weeks prior to the disqualification.

Legal experts are divided on whether Powell's intent to live in the district will prevail over the fact that his name was tied to a property outside the district.

Robert Highsmith, a Republican attorney who represented Baker, said the fact that Powell's name appears on a homestead exemption outside the district makes it an open-shut case.

But Michael Jablonski, attorney for the Democratic Party of Georgia, says he's seen several cases in which judges have ruled homestead exemptions alone do not prove residency. He noted that the administrative law judge who ruled in favor of Powell overlooked the exemption in favor of other evidence Powell used to show he intended to live in the fourth district.

If Powell loses the appeal, candidate Bob Indech will win the primary having collected 15 percent of the vote. One of the men will face Republican Lauren "Bubba" McDonald and Libertarian Brandon Givens in November.